Citation Nr: 1600951
Decision Date: 01/11/16 Archive Date: 01/21/16
DOCKET NO. 14-09 818 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California
THE ISSUES
1. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for bilateral hearing loss.
2. Entitlement to service connection for left ear hearing loss.
3. Entitlement to service connection for right ear hearing loss.
REPRESENTATION
Veteran represented by: The American Legion
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
Ashley Castillo, Associate Counsel
INTRODUCTION
The Veteran served on active duty from July 1976 to July 1980.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California.
Although the RO reopened the previously denied the claim of entitlement to service connection for bilateral hearing loss, the question of whether new and material evidence has been received is one that must be addressed by the Board, notwithstanding a decision favorable to the Veteran that may have been rendered by the RO. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (the Board has a jurisdictional responsibility to consider whether it was proper for the RO to reopen a previously denied claim). As such, the Board will first consider whether new and material evidence has been received sufficient to reopen the claim of entitlement to service connection for bilateral hearing loss, before reaching any merit determination.
In June 2015, the Veteran presented sworn testimony during a video-conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file.
FINDINGS OF FACT
1. In May 2005, February 2007, and October 2009 rating decisions, the RO denied entitlement to service connection for bilateral hearing loss. The Veteran did not appeal those decisions, and new and material evidence was not received within one year after they were issued.
2. Evidence received more than one year since the October 2009 rating decision relates to an unestablished fact that raises a reasonable possibility of substantiating the claim of entitlement to service connection for bilateral hearing loss.
3. The evidence is in equipoise as to whether left ear hearing loss is related to active military service.
4. The Veteran does not have a current right ear hearing loss as defined by VA.
CONCLUSIONS OF LAW
1. The May 2005, February 2007, and October 2009 rating decisions that denied entitlement to service connection for bilateral hearing loss are final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2015).
2. New and material evidence has been received to reopen the claim of entitlement to service connection for bilateral hearing loss. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015).
3. Resolving all doubt in the Veteran's favor, left ear hearing loss was incurred during active military service. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2015).
4. The criteria for service connection for right ear hearing loss are not met.
38 U.S.C.A. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385 (2015).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duties to Notify and Assist
The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable AOJ decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Further, VA must notify the claimant that a disability rating and effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. Ap. 473 (2006).
Given the favorable actions taken herein as to the claims of whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for bilateral hearing loss and entitlement to service connection for left ear hearing loss no discussion of the VCAA requirements are required.
With regards to entitlement to service connection for right ear hearing loss, a pre-decisional notice letter dated in January 2011 complied with VA's duty to notify. Specifically, the letter apprised the Veteran of the evidentiary requirements for service connection, the division of responsibility between the Veteran and VA with regard to obtaining evidence, and the process by which disability ratings and effective dates are assigned. Thus, the duty to notify is met.
In June 2015, the Veteran was afforded the opportunity to give testimony before the undersigned Veterans Law Judge. At the hearing, the undersigned Veterans Law Judge discussed the Veteran's service history and his current complaints. The undersigned Veterans Law Judge sought to identify any pertinent evidence not currently associated with the record that might have been overlooked or was outstanding that might substantiate his claim. As such, the Board finds that, consistent with Bryant v. Shinseki, 23 Vet. App. 488 (2010), the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).
Regarding VA's duty to assist, the RO obtained the Veteran's service treatment records (STRs), service personnel records, as well as VA and private treatment records. He was afforded VA examinations in November 2011 and July 2015. The VA examiners reviewed the claims file, considering the Veteran's STRs, post-service medical records and specific findings from the Veteran's examination. Lay statements of the Veteran were noted and considered, and the examiners provided a rationale for all findings made, relying on and citing to the records reviewed. The examination reports are therefore adequate to decide the claim. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The duty to assist is also met.
I. New and Material Evidence
The claim may be reopened if new and material evidence is submitted. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992).
The Veteran's original claim of service connection for bilateral hearing loss was denied in a May 2005 rating decision for lack of a current disability. In May 2006, the Veteran and his friend submitted lay statements, which related the Veteran's bilateral hearing loss to his military service. These statements were redundant of the Veteran's prior contentions and did not constitute new and material evidence. See Reid v. Derwinski, 2 Vet. App. 312, 315 (1992). Thus, the Veteran did not appeal the May 2005 decision, nor did he submit new and material evidence within the remaining appeal period.
In May 2006, the Veteran submitted a claim to reopen the previously denied claim of entitlement to service connection for bilateral hearing loss. In the February 2007 rating decision, the RO again denied the claim of entitlement to service connection for bilateral hearing loss on the merits for lack of a current disability. The Veteran did not appeal the February 2007 decision, nor did he submit new and material evidence within the remaining appeal period.
In September 2008, the Veteran submitted an application to reopen the previously denied claim of entitlement to service connection for bilateral hearing loss. In a December 2008 rating decision, the RO denied the claim of entitlement to service connection for bilateral hearing loss for lack of evidence of a medical nexus between the Veteran's bilateral hearing loss and his active military service. In July 2009, within the one year appeal period, the Veteran submitted a private audiogram. Subsequently, in an October 2009 rating decision, the RO determined that new and material evidence had not been received to reopen the claim of service connection for bilateral hearing loss. The Veteran did not appeal the October 2009 decision, nor did he submit new and material evidence within the remaining appeal period.
Accordingly, the May 2005, February 2007, and October 2009 rating decisions are final as to the evidence then of record, and are not subject to revision on the same factual basis. See 38 U.S.C.A. § 7105(c); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103.
The relevant evidence of record at the time of the October 2009 rating decision included the Veteran's service treatment records (STRs), VA treatment records and private treatment records, a lay statement and the Veteran's statements. In particular, the VA and private treatment records showed a diagnosis of left ear hearing loss as defined by VA and the Veteran's complaints of bilateral hearing loss. The lay statements of record at that time suggested that the Veteran's bilateral hearing loss was related to in-service noise exposure.
Relevant evidence received more than one year since the October 2009 rating decision includes VA and private treatment records, November 2011 and July 2015 VA examination reports, the June 2015 Board hearing transcript, and the Veteran's testimony and statements. Specifically, the November 2011 and July 2015 VA examination reports addresses whether the Veteran's bilateral hearing loss is related to his military service.
This evidence is considered "new," as it was not of record at the time of the last final denial; it is also "material" because it relates to a previously unestablished fact, namely, a possible medical nexus between the Veteran's bilateral hearing loss and his military service. 38 C.F.R. § 3.156. Accordingly, the claim for service connection for bilateral hearing loss is reopened.
III. Service Connection
Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. In order to establish service connection for the claimed disorder, generally there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999).
Hearing loss disability for VA purposes is defined by regulation. For the purpose of applying the laws administered by the VA, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385.
The Court has held that the threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993).
A. Left Ear Hearing Loss
Here, the Veteran contends that his left ear hearing loss is due to in-service noise exposure. See, e.g., Board hearing transcript dated June 2015. Specifically, he asserts that he sustained acoustic trauma due to loud machinery during the performance of his military occupational specialty (MOS) as boiler technician, while aboard the U.S.S. Denver. Id. Furthermore, he claims that on one particular occasion, he was in the presence of a boiler explosion.
The Veteran's DD-214 confirms that his MOS was a boiler technician. The Board has no reason to dispute the Veteran's credible statements concerning in-service noise exposure, as his MOS and military duties would reasonably include regular exposure to loud machinery. 38 U.S.C.A. § 1154(a)(2014).
STRs do not show any complaints, treatments, or diagnosis of left ear hearing loss.
Post-service medical evidence reveals a current diagnosis of left ear hearing loss as defined under 38 C.F.R. § 3.385. See, e.g., VA examination reports dated November 2011 and July 2015.
As shown above, the Veteran has met the first and second elements of service connection on a direct basis. At issue is the third element - whether there is a relationship between his current left ear hearing loss and his in-service noise exposure.
Against the claim is a November 2011 VA opinion, in which the VA examiner opined that the Veteran's left ear hearing loss is less likely as not due to his military service. The examiner reasoned that the Veteran's in-service audiogram reports revealed normal left ear hearing. Notably, the VA examiner commented that the Veteran's August 1977 in-service audiogram report showed left ear threshold shifts at 3000 and 4000 hertz. Thereafter, the Veteran's "hearing status is unknown after 1977." The Veteran was not seen for left ear hearing loss until 2005, at which time he had moderate to mild hearing loss. In support of the examiner's opinion, she cited to a journal article, in which essentially stated that "veterans and non-veterans were equally likely to have hearing loss and the degree of hearing loss is likely to increases or worsens with age."
In favor of the Veteran's claim is a July 2015 VA opinion. The July 2015 VA examiner opined the Veteran's left ear hearing loss is related to his in-service noise exposure. The VA examiner reasoned,
There were significant thresholds changes in the left ear between the entrance exam and the last audio exam dated on [August 1977] and he reported that he was exposed to loud boiler noise in the engine room during the military service as a boiler technician. When the tiny hairs of the inner ear become damaged or bent from exposure to loud sounds, this may result in reduction and deterioration of audible range.
See VA examination report dated July 2015.
The Board finds that the medical nexus evidence is at least in equipoise, and, as such, the benefit of the doubt is resolved in the Veteran's favor. Therefore, service connection for left ear hearing loss is warranted. 38 U.S.C.A. §5107; 38 C.F.R. § 3.102.
B. Right Ear Hearing Loss
Here, the Veteran claims that he has right ear hearing loss due to in-service noise exposure. See, e.g., Veteran's claims dated May 2006 and November 2010.
The Veteran's STRs are absent any complaints, treatment, or a diagnosis of right ear hearing problems. Furthermore, clinical evaluations and audiogram pure tone thresholds of the right ear in November 1976, December 1976, and August 1977 were normal.
Post-service medical evidence shows the Veteran's generalized complaints of right ear hearing loss; however, medical evidence is absent any indication of right ear hearing loss as defined under 38 C.F.R. § 3.385. See, e.g., VA audiogram reports dated January 2005 and June 2008.
For example, in a November 2011 VA audiological examination report, audiological pure tone thresholds, in decibels in the right ear, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
15
15
15
15
25
Speech audiometry revealed speech recognition ability of 94 percent in the right ear.
The November 2011 VA audiological report fails to show right ear hearing thresholds of 40 decibels or greater, or thresholds of 26 decibels or higher at three frequencies. Furthermore, his right ear speech recognition score was not less than 94 percent. Thus, the Veteran does not meet VA's requirements for a right ear hearing loss disability.
And more recently, in a July 2015 VA audiological examination report, audiological pure tone thresholds in an air conduction study, in decibels in the right ear, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
15
15
15
25
35
Speech audiometry revealed speech recognition ability of 100 percent in the right ear.
The July 2015 VA audiological report also fails to show right ear hearing thresholds of 40 decibels or greater, or thresholds of 26 decibels or higher at three frequencies. And right ear speech recognition score was 100 percent; thus, not less than 94 percent.
During the July 2015 VA examination, the VA examiner also documented the Veteran's audiological pure tone thresholds in a bone conduction study, which showed an audiological pure tone threshold of 40 decibels in the right ear at 4000 Hertz. However, the VA examiner indicated that an air conduction study best reflects the Veteran's hearing loss rather than the bone conduction study. Therefore, since the air conduction study are more representative of the Veteran's actual right ear hearing loss, the Board finds that the July 2015 VA examination report does not demonstrate right ear hearing loss.
Additionally, a July 2009 private audiology consultation report shows audiometric findings; however, Maryland CNC speech discrimination score were not provided as VA regulations require. See 38 C.F.R. 4.85(a). Further, the July 2009 private audiology results were unclear as to the audiological pure tone thresholds the Veteran achieved. It was also unclear whether the private audiological results were valid for VA rating purposes in accordance with 38 C.F.R. § 4.85(a) (2015). Therefore, for the reasons stated above, the Board finds that the July 2009 private audiology consultation report is of no probative value. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (holding medical opinions that are speculative, general, or inconclusive in nature cannot support a claim).
In sum, the medical evidence fails to demonstrate that the Veteran meets VA's requirements for right ear hearing loss. There are no other audiological findings of record. The competent evidence of record fails to show right ear hearing loss as defined under 38 C.F.R. § 3.385.
Congress has specifically limited entitlement to service connection to instances where disease or injury has resulted in a disability. See 38 U.S.C.A. §1131. As such, an essential element of a service connection claim is the establishment of a current disability. To this end, the Veteran's STRs and post-service medical evidence fails to show right ear hearing loss at any time during the appeal period. See Brammer v. Derwinski, 3. Vet. App. 223, 225 (1992) (holding, in the absence of proof of a present disability, there can be no valid claim) & McClain v. Nicholson, 21 Vet. App. 319 (2007) (which stipulates that a service connection claim may be granted if a diagnosis of a chronic disability was made during the pendency of the appeal, even if the most recent medical evidence suggests that the disability resolved). The Board does not dispute the Veteran's assertions that he experiences right ear hearing loss. However, medical evidence does not establish that the Veteran has a diagnosis of right ear hearing loss for VA purposes; there can be no valid claim for service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).
In reaching the above conclusion, the Board has not overlooked the Veteran's statements concerning his right ear hearing loss. However, while the Veteran contends he suffers from right ear hearing loss as a result of service is not a simple medical condition the Veteran is competent to self-diagnose, because such a diagnosis falls outside the realm of common knowledge of a lay person; that is, the diagnosis cannot be made based on mere personal observation, which comes through sensory perception, but instead is based upon audiometric testing results. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also 38 C.F.R. § 3.385. Accordingly, the Veteran is not competent to determine that he suffers from a right ear hearing loss disability as defined by regulation, and his opinion in this regard is not competent medical evidence. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).
Consequently, the claim for service connection for right ear hearing loss must be denied.
ORDER
New and material evidence has been submitted to reopen a claim of entitlement to service connection for bilateral hearing loss, and to this extent, the appeal is allowed.
Service connection for left ear hearing loss is granted.
Service connection for right ear hearing loss is denied.
____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs